Supreme Court at Work

• Author: David M. O' Brien
• Pages: 2603-2610

Page 2603

In its first decade, the Supreme Court had little business, frequent turnover in personnel, no chambers or staff, no fixed customs, and no institutional identity. When the Court initially convened on February 1, 1790, only Chief Justice JOHN JAY and two other Justices arrived at the Exchange Building in New York City. They adjourned until the next day, when Justice JOHN BLAIR arrived. With little to do other than admit attorneys to practice before its bar, the Court concluded its first sessions in less than two weeks. When the capital moved from New York City to Philadelphia in the winter of 1790, the Court met in Independence Hall and in the Old City Hall for ten years, until the capital again moved to Washington, D.C. Most of the first Justices' time, however, was spent riding circuit. Under the JUDICIARY ACT OF 1789, they were required twice a year to hold CIRCUIT COURT, in the company of district judges, to try some types of cases and to hear appeals from the federal district courts. Hence, the Justices resided primarily in their circuits rather than in Washington and often felt a greater allegiance to their circuits than to the Supreme Court.

When the capital moved to Washington, D.C., in 1800, no courtroom was provided. Between 1801 and 1809, the Justices convened in various rooms in the basement of the Capitol. In 1810, they shared a room in the capitol with the Orphans' Court of the DISTRICT OF COLUMBIA. This room was destroyed when the British burned the Capitol on August 24, 1814, and for two years, the Court met in

Page 2604

the Bell Tavern. In 1817, the Court moved back into the Capitol, holding sessions in a small dungeonlike room for two years. In 1819, it returned to its restored courtroom, where it met for almost half a century.

For most of the nineteenth century, the Justices resided in their circuits and stayed in boardinghouses during the Court's terms. Chief Justice ROGER BROOKE TANEY (1836?1864) was the first to reside in the Federal City, and as late as the 1880s most Justices did not maintain homes there. Lacking offices and sharing the law library of Congress, the Justices relied on a single clerk to answer correspondence, collect fees, and to locate boardinghouse rooms for them.

Coincident with the 1801 move into the Capitol, JOHN MARSHALL assumed the Chief Justiceship. During his thirty-four years on the Court, Marshall established regularized procedures and a tradition of collegiality. He saw to it that the Justices roomed in the same boardinghouse and, thereby, turned the disadvantage of transiency into strategic opportunity for achieving unanimity in decision making. After a day of hearing ORAL ARGUMENTS, the Justices would dine together, and around 7:00 p.m. they would discuss cases.

After 1860, the Court met upstairs in the old Senate Chamber, between the new chambers of the Senate and those of the House of Representatives. The Justices still had no offices or staff of their own. After the CIVIL WAR, however, the caseload steadily grew, the Court's terms lengthened, and the Justices deserted boardinghouses for fashionable hotels along Pennsylvania Avenue. Instead of dining together and discussing cases after dinner, they held CONFERENCES on Saturdays and announced decisions on Monday.

By the turn of the century, the Justices resided in the capitol and for the most part worked at home, where each had a library and employed a messenger and a secretary. The Court's collegial procedures had evolved into institutional norms based on majority rule. The CHIEF JUSTICE assumed a special role in scheduling and presiding over conferences and oral arguments. But the Court's deliberative process was firmly rooted in the Justices' interaction as equals. Each Justice was considered a sovereign in his or her own right, even though the Justices decided cases together and strove for institutional opinions.

After becoming Chief Justice in 1921, WILLIAM HOWARD TAFT persuaded four Justices to support his lobbying Congress for the construction of a building for the Court. Taft envisioned a marble temple symbolizing the modern Court's prestige and independence. Yet, when the building that houses the Court was completed in 1935, none of the sitting Justices moved in, although sessions and conferences were held there in the later years of the HUGHES COURT (1930?1941). Upon his appointment in 1937, HUGO L. BLACK was the first to move in, leading the way for President FRANKLIN D. ROOSEVELT'S other appointees. Even when HARLAN FISKE STONE was elevated from Associate to Chief Justice, he still worked at home. The VINSON COURT (1946?1953) was the first to see all nine Justices regularly working in the Supreme Court building.

The marble temple stands for more than a symbol of the modern Court. Once again, the institutional life of the Court changed. As Taft hoped, the building buttressed the Court's prestige and reinforced the basic norms of secrecy, tradition, and collegiality that condition the Court's work. The Justices continued to function independently, but the work of the Court grew more bureaucratic. Along with the rising caseload in the decades following WORLD WAR II, the number of law clerks more than tripled and the number of other employees dramatically increased as well. The Justices in turn delegated more and incorporated modern office technology and managerial practices into their work. The WARREN COURT (1953?1969) started delivering opinions on any day of open session, and the BURGER COURT (1969?1986) moved conferences back to Fridays.

When POTTER STEWART joined the Court in 1958, he expected to find "one law firm with nine partners, if you will, the law clerks being the associates." But Justice JOHN MARSHALL HARLAN told him, "No, you will find here it is like nine firms, sometimes practicing law against one another." Even today, each Justice and his or her staff works in rather secluded chambers with little of the direct daily interaction that occurs in some appellate courts. Nor do recent Justices follow FELIX FRANKFURTER'S practice of sending clerks ("Felix's happy hotdogs") scurrying around the building to lobby other clerks and Justices.

A number of factors isolate the Justices, but most important is the caseload. The Justices, in Justice BYRON R. WHITE'S view, "stay at arm's length" and rely on formal printed communications because the workload discourages them "from going from chamber to chamber to work things out." Each chamber averages about seven: the Justice, three to four law clerks, two secretaries, and a messenger. As managing chambers and supervising paperwork consumes more time, the Justices talk less to each other and read and write more memoranda and opinions. Each chamber now has a photocopying machine and four to five terminals for word processing and legal research.

Law CLERKS became central to the work of the Court. In 1882, Justice HORACE GRAY initiated the practice of hiring a "secretary" or law clerk. When OLIVER WENDELL HOLMES, JR. succeeded Gray, he continued the practice, and other Justices gradually followed. By Chief Justice Stone's time it was well established for each Justice to have one clerk. During the chief justiceships of FRED M. VINSON and

Page 2605

EARL WARREN, the number increased to two. In the 1970s, the number grew to three and to four. The number of secretaries likewise increased?initially, in place of adding clerks and, later, to assist the growing number of clerks. A Legal Office, staffed by two attorneys, was created in 1975 to assist with cases in the Court's ORIGINAL JURISDICTION and with expedited appeals.

Although the duties and functions of clerks vary with each chamber, all share certain commonly assigned responsibilities. Most notably, Justices have delegated to them the task of initially screening all filings for writs of CERTIORARI. This practice originated with the handling of INDIGENTS ' petitions by Chief Justice CHARLES EVANS HUGHES and his clerks. Unlike the "paid" petitions that are filed in multiple copies, an indigent's petition is typically a handwritten statement. Except when an unpaid petition raised important legal issues or involved a capital case, Hughes neither circulated the petitions to the other Justices nor discussed them at conference. Stone, Vinson, and Warren, however, circulated to the chambers their clerks' memoranda, which summarized the facts and questions presented, and recommended whether the case should be denied, dismissed, or granted a review. But Chief Justice WARREN E. BURGER refused to have his clerks shoulder the entire burden of screening these petitions. And in 1972, a majority of the Justices began to pool their clerks, dividing up all paid and unpaid filings and having a single clerk's certiorari memo circulate to those Justices participating in what is called "the cert. pool." With more than a hundred filings each week, even those Justices who objected to the "cert. pool" have found it necessary to give their clerks considerable responsibility for screening petitions. Justice JOHN PAUL STEVENS describes his practice: "[The clerks] examine them all and select a small minority that they believe I should read myself. As a result, I do not even look at the papers in over 80 percent of the cases that are filed."

Law clerks have also assumed responsibility for the preliminary drafting of the Justices' opinions. Chief Justice WILLIAM H. REHNQUIST'S practice, for instance, is to have one of his clerks do a first draft, without bothering about style, in about ten days. Before beginning work on an opinion, Rehnquist goes over the conference discussion with the clerk and explains how he thinks "an opinion can be written supporting the result reached by the majority." Once...